Wednesday, June 28

The myth of the hands-off conservative jurist.

As the Supreme Court's term nears its conclusion, columnist George Will has asserted that the John Roberts and Samuel Alito confirmation debates were all about preventing "the nation's courts [from being pulled] even more deeply than they already are into supervising American life." The implication is that those who championed the recent nominations believe in a limited role for the courts, while those with reservations idealize an expansive one.

This characterization, taken directly from the right wing's playbook, sounds nice and neat. There's only one problem: It isn't true.

To be sure, conservatives have long vituperated against certain decisions that entangle courts in societal governance—from now-canonized Warren Court decisions desegregating public schools, ensuring "one person-one vote," and guaranteeing the rights of criminal defendants, to still-controversial decisions enforcing church-state separation, preserving abortion rights, and invalidating laws that single out gays for punitive treatment. And to be sure, liberals (and many moderates) generally celebrate those same rulings.

But contrary to what Will suggests, that's just not the end of the story. Though you'll rarely hear them admit it, today's movement conservatives do embrace muscular courts that "supervise American life," often in the very same cases in which liberals want courts to take a hands-off approach. The most fervent Roberts and Alito supporters would use the power of judicial review to wipe out or weaken land-use regulations, campaign-finance reform, affirmative action, and gun control. Perhaps more significant, they cheered—and hope that the additions of Alito and Roberts re-invigorate—the Rehnquist Court's recently slowed assault on Congress' legislative authority. Generating the highest-ever annual rate of invalidating federal legislation, the "hands-off" Rehnquist Court scotched laws safeguarding workers, seniors, people with disabilities, school children, and religious minorities and established standards threatening to scuttle even more, including important environmental achievements.

Among other things, these rulings provide that when deciding cases in which state government officials stand accused of violating a federal antidiscrimination law (such as the Americans with Disabilities Act), courts must strike the law down unless they determine that it is a "congruent and proportional" response to a demonstrable history of state-sponsored discrimination. Another landmark conservative favorite brushed aside a "mountain of data"—four years of fact-finding, studies from task forces in 21 states, and eight different congressional reports—to condemn as unconstitutional the "method of reasoning" Congress employed to enact legislation that would have protected women against violence. Talk about supervising American life.

And that's just what your run-of-the-mill movement conservative supports: Those on the right wing's fringes look to use the Constitution to undo scores of state and federal laws protecting workers, consumers, and public health. Just like the Supreme Court did in the early 20th century, when it infamously wiped out all manner of social welfare legislation, including laws prohibiting child labor, setting a minimum wage, and regulating maximum work hours. New books by pundits Mark Smith and Andrew Napolitano advocate this cause with swagger.

The truth, then, is that despite all their fulminating about judicial activism, conservatives today firmly believe that courts must step in to oversee, correct, or invalidate the actions of government officials. They simply disagree with liberals on when to do it.

And that is the real debate—the debate over "when"—we should be having. Not the tiresome mudslinging about who's an "activist" and who's "restrained," but rather an open, honest discussion about when the exercise of judicial power is justified and when it isn't.

For conservatives, as the above examples show, judicial intervention is fine when it means slicing up labor, consumer, civil rights, and environmental regulations intended to curb the potential excesses of laissez-faire economic policy. It isn't fine when it means enforcing civil rights and civil liberties. Liberals take pretty much the opposite view. This is, of course, a crude generalization, but the exceptions—conservatives (like liberals) want courts to protect the freedom of religious minorities, liberals (like conservatives) want courts to scrutinize over-aggressive eminent domain practices—don't put much of a dent in it.

Two Supreme Court cases decided in the past weeks illustrate the point. In the case that prompted Will's column, the high court ruled, by a vote of 5-4, that the First Amendment offers no protection against retaliation for public employees who, in the course of their duties, blow the whistle on government waste, fraud, or corruption. Roberts and Alito joined the majority. Conservatives like Will applauded the court's narrowing of judicially enforceable liberties because, they say, it frees the hands of government employers to maintain a disciplined workforce. Liberals, on the other hand, criticized the take-a-powder diktat to lower courts, saying it discourages whistle-blowing and curbs the free-speech rights of the nation's 21 million government workers.

Last week the tables turned in an important case that determined whether the Clean Water Act applies to environmentally sensitive wetlands on private property. According to a brief filed by former members of Congress who enacted the law, it does, and federal regulators have treated it as such for 30 years. The states liked it that way, too. Liberals wanted the court to back off and allow this pro-environmental-protection consensus to hold. Many conservatives, however, wanted the court to meddle, arguing that the Clean Water Act doesn't really cover many of the wetlands that the legislative-regulatory consensus said it did. Much to their delight, Roberts and Alito joined Justices Scalia and Thomas in adopting this intrusive approach.

And there, in a nutshell, is what simultaneously animated liberal concern and conservative giddiness over Roberts and Alito last fall and winter: It was not simply that these two new justices might pull the federal judiciary away from enforcing legal rights, as in the whistle-blower case. It was also—perhaps even more—that, as in the wetlands case, they would forcefully insert the judiciary into areas of governance where, for much of the past 75 years, the courts have trod very carefully.

The pretense that conservatives favor shrunken courts while liberals favor aggrandized ones obviously plays to a sizable chunk of the Republican base, which in fact wants courts to exit the arena on the issues it cares about most deeply—abortion, gays, and religion in the public square. But the pretense also provides a useful cover for many legal views that just aren't that popular. After all, as compared to the liberal vision of judicial power, the conservative vision typically advantages corporations, developers, state governmental institutions, and monied political interests. Not exactly a winning message.

When they get past the rhetoric, conservatives contend that these outcomes, which usually privilege the rich and powerful, rest on solid legal foundations. Fair enough. The public would benefit from a debate about the merits of such arguments. What the public doesn't benefit from is the charade that these outcomes are compelled by some unwavering commitment to a "limited" role for the courts.

Seth Rosenthal, a former federal prosecutor, is legal director of Alliance for Justice.